Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning, everyone, and welcome to Thursday, June 15th. Thursdays are decision days for the Supreme Court this month and the decisions are usually released at 10:00 AM, so we're watching the Supreme Court feed and we'll let you know if any big decisions come down. Remember, among the cases the country is holding its breath on are the high-stakes areas of President Biden's student loan forgiveness program; constitutional or unconstitutional the way he's doing it? Can partisan state legislatures impose politically gerrymandered election districts with no oversight by the courts?

That one's got huge implications for disenfranchising whole communities of voters and even for partisan legislatures to potentially impose something like Trump's stolen election lie, like Trump tried to have some state legislatures do with no review by the courts. The courts were key in defending against that in 2020. There's another big affirmative action in college admissions case. One on whether a website-making company can refuse to make wedding websites for gay couples, here we go on that again, on the basis of artistic freedom, which is their claim this time more than religious liberty, and more. We will see if this is Supreme Court decision day for any of the cases we're watching.

As we keep one eye on the SCOTUS feed, we will bring on CNN legal analyst, Elie Honig, because there is also so much other big legal news right now to try to make sense of. There's the Trump classified documents case, of course, and Republicans in Congress investigating the investigators. There's also the news that broke yesterday that the New York City's subway choker, Daniel Penny, has now been officially charged with manslaughter by a Manhattan grand jury in the killing of Jordan Neely. The grand jury affirms the indictment announced earlier by the Manhattan DA. There's the civil court decision about a case in Philadelphia yesterday awarding damages to a former Starbucks employee who sued claiming she was fired because she was white. The jury agreed to the tune of $25 million. There's always more.

With us now is Elie Honig, Senior Legal Analyst at CNN, a former prosecutor for the state of New Jersey and the federal government, and author of the book that came out this year and for which he was last on the show, Untouchable: How Powerful People Get Away with It.

Elie, always great to have you on. Welcome back to WNYC.

Elie Honig: Thanks for having me, Brian. Are you sure we have enough content? I'm not sure there's quite enough [crosstalk]--

Brian Lehrer: I don't know if we can make it through 15, 17 minutes. I don't know. [crosstalk] We'll watch the Supreme Court for any announcements. If there's one decision we're waiting for here that you see as most consequential, which one might it be?

Elie Honig: Well, I'm going to cheat a little and give you two, if you don't mind. The affirmative action decision, of course, because that's going to change everything about the way that our students apply to and are admitted to college. I'm going through this right now. I have a son who's about to graduate from high school, so it won't impact him, but this is a big deal. It could be-- I mean, we have a six-to-three conservative Supreme Court. I think the betting odds, if you had them, would be that the conservatives will prevail here, and that it is likely- it is possible and likely that this will make it unconstitutional, illegal to consider race in college admissions, which will be a massive sea change.

It will change 40 years' worth of precedent and practice if it comes down that way. Although I should know, we've been surprised as recently as last week when the Supreme Court came out with a decision that upheld an important provision of the Voting Rights Act, where Chief Justice Roberts and Justice Kavanaugh sided with the three liberals, so nothing's taken for granted.

The other big one, and you alluded to this also, Brian, is a case called Moore v. Harper, but the idea there is what we call the independent state legislature theory. If it goes this way, and I have my doubts that it will but it's possible, the court basically says state legislatures can draw their lines and decide how voting happens, and how [sound cut] [inaudible 00:04:21] -way they want without even being reviewed by their state supreme courts. As you said, that was part of Trump's theory behind his effort to steal the 2020 election. Thankfully, it was not the law at the time, and it was rejected, but if this Supreme Court makes this the law of lands, it's going to have major impacts on our elections moving forward.

Brian Lehrer: I can't even imagine a world in which a state legislature, and we know how partisan they can be-- We remember here in New York that the legislature was overturned last year for drawing a too pro-Democrats, partisan, gerrymandered set of districts for Congress and state senate, and after the court threw that out, it was the Democrat-governor-appointed Court of Appeals in New York State that threw that out as too pro-Democrat gerrymandering, and guess what happened? Republicans flipped Congress on the basis of seats they picked up in New York State. I can't even imagine a world where the state courts don't have review over the state legislature trying to gerrymander districts for their Party's advantage.

Elie Honig: It goes to all aspects of voting. The Constitution on its face says that how the states cast their votes for president and hold their other elections is up to the state legislature. The argument that proponents of this theory are making, which by the way, sort of started as a fringy, hypothetical law school-type theory out there in the academia world and has now made its way up to the Supreme Court, but they've said, well, it says state legislatures; that means state legislatures. The response is, but state legislatures are always automatically subject to review for constitutionality by the Supreme Court or to veto by a governor.

You can imagine where this would lead. What if a state legislature decided on a way of choosing its, let's say, presidential electors that was just patently unconstitutional? What if they said, we're going to have a coin flip and whoever wins the coin flip gets all of our electors? Then the thinking is nothing can be done about that, the state supreme court can't step in. I do think that one's going to be a bit of a bridge too far, but boy, oh boy, if it goes with the extreme result, it's going to really change everything.

Brian Lehrer: Yes. While we wait for the rulings from on judicial high, let's talk about some of these other things going on. I want to start with the subway choker case. Listeners may be confused to hear that a grand jury has now indicted Daniel Penny because the Manhattan DA did that weeks ago. Can you explain the distinction?

Elie Honig: Yes. The Manhattan DA didn't quite indict Daniel Penny. That's what happened today. The Manhattan DA a few weeks ago issued a prosecutor's complaint, which basically is a document where you say, we, the prosecutor, allege that there's probable cause that this crime was committed. In this case, the crime is manslaughter in the second degree. We can talk a bit more about that, but it means not an intentional killing, but it means essentially a reckless killing given all the circumstances.

The next step in order to get an indictment, you have to go to a grand jury, which is a pool of civilians, usually 23 civilians. It's a fairly low burden. I actually thought it was possible that a grand jury in this case would decline to indict but apparently, the grand jury has chosen to indict Mr. Penny. The evidence has now been presented to a grand jury. The grand jury has found probable cause lower than the standard of trial, which of course is beyond a reasonable doubt, but probable cause that this crime was committed. Now we have step two of the process, which is the indictment. That's what's happening now.

Brian Lehrer: In that case, Penny is beginning to mount a case of self-defense and defense of people around him. He released a video this weekend saying basically that Mr. Neely threw his jacket at riders as soon as he got on the train and was threatening him and other riders by saying, "I'm going to kill you. I'm willing to go to jail for life and I'm prepared to die." That's Penny quoting Neely.

I'm sure the court will hear from witnesses who will either dispute or corroborate what exactly Mr. Neely was saying or how he was moving, but nobody has yet alleged that Mr. Neely touched anyone. What does the state have to prove, because the state has the burden of proof in a criminal case, if the defendant here is claiming self-defense on these particular facts?

Elie Honig: Let's start with the self-defense claim, which by the way, also applies to defense of a third person. You are entitled, in certain circumstances, to use lethal force to defend yourself or some other person who's being attacked. The question is, did this person reasonably perceive, not just any threat, but did this person reasonably perceive that there was a threat that the person who ended up, let's say, the victim, I don't want to cast any judgment but let's just for ease of definition here, did the person reasonably believe that the victim posed a threat of causing death or serious bodily injury? Essentially, did the defendant reasonably believe that this person would kill or maim himself or somebody else?

This is a classic jury question. As you say, Brian, I agree, the bystander testimony, the testimony of other people on that subway car is going to be crucial. We know, as you said, that Mr. Neely was not armed. It appears he didn't punch or physically attack anybody, but it also appears he was menacing and making verbal statements that could have been quite alarming to people. Sometimes, I think there's this temptation to say, well, what does the law say? Does the law say that this is or is not self-defense? That this was or was not reckless? The answer is, there is no answer. The answer is, it's whatever the jury concludes. This is why we have juries because they will use their own judgement, their own common sense.

This is very much, in my mind, obviously a tragic case. It's also very much a New York case. It pulls together a lot of different strands that are happening here in New York, where I happen to sit at this moment, about crime, and there's certainly a racial element here, and safety and security. One thing that I think makes this especially difficult is a lot of your jurors are going to be- maybe all of them are going to be regular users of the subway. Some of them might be taking the subway to the courthouse in the morning. I could see that influencing them and bringing their own experience into play either way here.

Brian Lehrer: Well, one more thing on this, and then we do have a Supreme Court ruling that just came down that I'll get your first impression of. It's not any of the ones that I mentioned in the intro, but it's another big one we've been waiting for. If Mr. Penny is accurate on Mr. Neely saying, "I'm going to kill you," to people and not just muttering that to himself, let's say, but addressing riders directly and moving near them in some way as he's saying, "I'm going to kill you," is the law clear on how much that does or does not justify jumping the guy?

Elie Honig: No, there's no mathematical formula, but that's absolutely going to be a crucial factor, maybe the most important factor in this case. The defendant will argue, what more does the guy need to do short of killing someone? When someone comes up to any other person and goes into a public place and says, "I'm going to kill you, and I'm willing to go to jail for life," I'm making the defense argument here; then, yes, you are entitled to reasonably assume that person is going to kill somebody.

I think the counter response that you'll hear from prosecutors is those are just words, people say I'll kill you all the time and don't kill people, and that the reaction from Mr. Penny was too extreme too quickly. Again, I think even just talking about it here with you, I think listeners can understand why that's a difficult calculation, and why different jurors may end up reaching different conclusions on that.

Brian Lehrer: Elie Honig with us, former federal and New Jersey state prosecutor, currently CNN Senior Legal Analyst.

All right, we have a ruling just in from the Supreme Court. It's in the case called Haaland v. Brackeen, which challenges the Indian Child Welfare Act, which says when Indian, meaning Native American, children are up for adoption, preference should be given to parents in the same tribe or who are also Native American. It's a little bit like the affirmative action case against the colleges. There's a white Texas couple who sued to claim their Fourteenth Amendment rights to equal protection are being violated by the Indian Child Welfare Act because it gives preference to Indian couples or Indian adopters.

Now here's- drumroll, please. The ruling is the court rejects the challenge to the Indian Child Welfare Act, some on the merits, the decision says, and also for lack of standing. In other words, the Indian Child Welfare Act stands. They can continue to give preference to Native American people who want to adopt when there's a case of a Native American child up for adoption. This was seven to two. I'm looking for the dissenters. Thomas and Alito were the only ones who dissented. Talk about this case.

Elie Honig: Well, it's interesting, first of all, to see again the coalition of justices that has come together on the majority of the Chief Justice Roberts. Then you have Sotomayor, Kagan, Gorsuch, Kavanaugh, and Justice Ketanji Brown Jackson. It's an interesting coalition there. The standing question basically means, did the person who brought this lawsuit sustain legally recognizable injury? I don't know exactly who the person is who brought it. Based on what you just said, Brian, it sounds like if there's a standing problem, the court was saying the person who brought this case was not legally entitled to bring it.

On the equal protection issue, it always comes down to this. On the one hand, who is the class being protected? On what basis is the discrimination being drawn? Here, I guess the argument would be on race, as Native American and non-Native American people. Then is this regulation, is this rule narrowly crafted to promote a legitimate interest? It sounds like here, if I'm following this correctly, that the law stands, and so it is constitutional, according to the Supreme Court, this federal law that gives preference to Native American families when it comes to adopting Native American children.

Brian Lehrer: Could this case, if it had gone the other way, had broad implications for Native American tribal sovereignty?

Elie Honig: Well, I think their sovereignty remains the same, but I think it would have implications for the way that the federal government, this is a federal statute, the way that the federal government can draw up laws that discriminate in any way based on a person's race, ethnicity, religion. We are seeing more of these challenges brought. Now it's interesting again to note the coalition, this cross-ideological coalition.

You're also starting to see what I would call, and the affirmative action case falls into this bucket too, you're starting to see "reverse discrimination" claims brought, where some policy is intended to give some benefit or some advantage to a minority group, a historically discriminated against minority group; in the case of affirmative action, based on race; and here, based on the race of the child or the adopting parents. You're starting to see people who are not part of that group come in and sue and say, but that's unfair to me.

Brian Lehrer: There is another case that I think also pertains to Native Americans. I'm not familiar with this one and I don't know if you are. It's called Lac du Flambeau Band of Lake Superior. This also, I think, has something to do with tribal sovereignty, and they did issue a ruling in this case. Are you familiar enough to give a little background?

Elie Honig: I am not. I'm going to pass on this one. I'm trying to read it as we speak, but I just don't know this one.

Brian Lehrer: Okay, so we'll come back to that. It looks like that's all the Supreme Court is going to do today. I'm looking at the website, SCOTUSblog. Those two, plus another one that's, I think, more minor and we're not going to get into, and that one was a unanimous decision. We still have all these other cases going on that are not Supreme Court cases that might be decided today.

They did, by the way, announce that tomorrow will be another Supreme Court decision day. That's an indication, Elie, of how backed up they are, right? All these major cases that we talked about at the top, with huge national implications for so many Americans. It's June 15th already. They're supposed to end by the end of the month. They've added tomorrow is another decision day. Is that unusual?

Elie Honig: It is unusual, historically, but not very recently. Because typically, they try to end their term and get all the rulings out by the end of June. We have gone into July a couple times recently. The most recent Affordable Care Act affirmation, I think, happened into July. They can issue rulings as long as they want but yes, it does tell us something that they've added a new decision day. I think there was something in the range of 15 to 20 cases left. That's a lot. On a decision day, you'll see two to five decisions per day. It does tell me that they're grinding and trying to get this done as soon as they can.

Brian Lehrer: We have a few people calling in on the Daniel Penny subway choker case, after we had analyzed that a little bit, so let's take a couple of calls. Here's Lucy in Ossining. Lucy, you're on WNYC. Hello.

Lucy: Thank you for taking my call. I'm a Black 58-year-old woman, and when I saw that, I didn't even think about race. I'm just so outraged that he was indicted. I'm just devastated because to me, he's a hero, and I thank him for stepping up because most people just sit there and take pictures and videotape it, but he actually did something. I'm just shocked that they could do this. My Black middle-class friends feel the same way. We're just devastated that this could happen.

Brian Lehrer: You're not at all uncomfortable with the fact that before anybody was touched, that somebody jumped the guy and put him in what turned out to be a fatal chokehold?

Lucy: No, because if people are threatening on the subway, you are basically helpless. I'm going on a plane, I'm going on a flight, and I hope someone will step up because I'm sick and tired of people hiding behind mental illness. If they have mental illness, then go commit yourself to a hospital but don't terrorize people on these places.

Brian Lehrer: Lucy, thank you very much for your call. Carol in Silver Spring, Maryland. You're on WNYC. Hi, Carol.

Carol: Hi, Brian. Thanks for taking my call. I agree 200% with the caller just before. I'm 63 years old. I live in Maryland now. I'm still a lifelong New Yorker, used to be a neighbor of yours. I tell you, if it's ever happened to you, and also as a woman-- I pride myself on the fact that I lived my whole life in New York and never had any physical altercation, never had anything happen to me, but pre-COVID, I got on the number one train at 59th Street. Then the doors were about to close, a guy came on looking like he was going to lose his mind and started threatening everybody. When I got off that train at 66th Street, the next stop, first thing I thought is, it's time to move out of New York.

It's horrible because when I heard about this case, I thought, finally, somebody is standing up instead of, like the previous caller said, these people taking videos. I'm living here in Maryland. I do come back and forth. It's like every time I'm about to like, oh, I'm excited, I'm going to come back to New York for the weekend, and then I see one of these videos coming through my feed and it's just like, it's terrorizing. I hope that that jury, they are New Yorkers who ride the train, and I hope it's made up at least half, women. Thanks.

Brian Lehrer: Carol, thank you very much. Of course, you do have to look at the stats and not just the videos that go viral when you're making calculations about your safety, your odds of being attacked in any way on the subway system, but Carol, I hear you. Thank you very much. One more on this. Patrick in Inwood. You're on WNYC. Hi, Patrick.

Patrick: Hi. Good day. Thanks for taking my call. What is sauce for the goose is sauce for the gander. There is a parallel case currently in the news with a Black man named Jordan Williams who stabbed a man named Ouedraogo, I'm assuming by the last name he's probably Latino, who was apparently menacing on the train. Mr. Williams took out a knife, which he was carrying, and stabbed him to death. I don't see [unintelligible 00:22:14] noise and that creating any brouhaha the likes of which would generate [unintelligible 00:22:20] close to a $2 million defense fund to defend this Black man.

I am 69 years old, legally blind. That condition [unintelligible 00:22:33] doesn't give me any reason to deviate from what the [unintelligible 00:22:36] gave us in terms of [crosstalk]--

Brian Lehrer: You're saying the man, Jordan Williams, who was charged and is Black, you're saying race is a factor here in who's perceived as acting in self-defense and who's perceived as a criminal?

Patrick: Precisely. If Mr. Penny is permitted to get away with this as anybody who feels threatened on the train, who feels uncomfortable, ought to have the right, if they could, sneak up behind them and choke them out, or pull out a knife and stab them as Mr. Williams has done. The rules are simple. Keep it simple, stupid. We have rules about self-defense that have existed for forever. Apply them. That's all.

Brian Lehrer: Patrick, thank you for your call. Here's more on that case. This is a New York Times article from yesterday. Elie Honig, I don't know if you've heard about this case yet, but you know this was one of the first things that came up when the incident with Neely and Penny was first revealed. People said, hey, if this was reversed, if this was a Black man who applied the chokehold, he would've been seen as a criminal right away.

In this case, here's a New York Times story, the headline, Man Charged With Manslaughter After Subway Stabbing. It says, "A Queens man was charged with stabbing and killing a man during a dispute on a New York City subway train on Tuesday night in Brooklyn, the police said." The man, who the caller rightly named as Jordan Williams, 20 years old, stabbed the victim on a northbound J train, the police said. It says, "Before the men's encounter, Mr. Ouedraogo-" well, I don't know how to pronounce this name, so I'll just say it phonetically, "Ouedraogo had gotten into a dispute with passengers on the train, including Mr. Williams's girlfriend, according to law enforcement sources." The guy who was stabbed was in an altercation with riders. Let's see. An attorney representing Mr. Williams, attorney named Jason Goldman says, "It's upsetting to see that Mr. Williams is even being charged without a thorough investigation. We already know that the victim punched Mr. Williams's girlfriend and menaced passengers."

Elie Honig, I don't know if this is a first pass for you on this, it is for me, but as a first impression, you hear the caller raising a double standard. You can understand why it's at least a question.

Elie Honig: Yes, I do understand why people are asking these kinds of questions, but I really want to urge people to remember every one of these cases stands on its own, and the facts and the nuances of each case is so important. We ought to be careful of not just saying, well, it's one subway killing, it's another subway killing; therefore, it's the same thing. Even just from what you just said, I see two major distinctions here.

First of all, Mr. Williams stabbed this person. Meaning, I think you can reasonably infer, intended to kill him. Now, was it in self-defense is part two. Versus the chokehold case, I don't think anybody maintains- the prosecution, the DA does not maintain that Mr. Penny intended to kill Mr. Neely. The argument here is that he was reckless. There's a difference there.

Then weighing the other way. In the Williams case, according to what you just said, the victim punched somebody. Punched, that is much more direct, and I think much more calls up the need for some sort of self-defense than in the Neely case, where Neely made verbal threats but didn't apparently physically touch anybody. There's factors weighing one way or the other. I'm hesitant to go, "Well, the outcome in case A was this. Shouldn't it be the same in case B?" When case A and case B are just different.

Brian Lehrer: We're not going to solve either of these cases now, but this new case also makes me think of the Jose Alba case in Manhattan where originally, the Manhattan DA charged a guy who was working in a bodega with murder after he stabbed somebody who had come in and was menacing him, and he was in the process of starting to attack the worker, Jose Alba, and Alba stabbed him, and he was charged. You remember, there was such a public outcry that he was just acting in self-defense, that those charges were dropped by the Manhattan DA very quickly. It was a stabbing. It was a fatal stabbing based on a menacing set of physical actions toward him. I'm just thinking of that as somewhat parallel and ultimately, Jose Alba was not charged.

Elie Honig: Yes, it's interesting. All these cases have certain similarities, certain differences. They're all very New York stories as well. I thought it was really interesting to hear from these three callers who seemed to have-- It was two to one, it sounded like. The first two callers certainly would've voted not guilty- based on what little is known right now, but would've voted not guilty on the Penny case. It sounds like the third one probably would've voted guilty.

Remember, with the jury, you need unanimity. If you want to convict, you're going to need 12 New Yorkers to find him guilty. I think those three calls nicely illustrated why that's not going to be easy for prosecutors.

Brian Lehrer: More with Elie Honig in a minute on some of the other cases in the news. Stay with us.

Brian Lehrer on WNYC, as we continue to talk about legal cases in the news with Elie Honig, Senior Legal Analyst at CNN, a former prosecutor for the state of New Jersey and the federal government, and author of the book that came out this year called Untouchable: How Powerful People Get Away with It.

Speaking of powerful people getting away with it, I want to go next to the Trump classified documents case. Now, listeners, we did not do a segment on this yesterday because the news was really about the circus atmosphere in South Florida, not the law or the facts or the pillars of democracy that are at stake here, but now let's talk about some of that substance as it continues to develop.

We all know Trump was arraigned on Tuesday. Now one of the big legal issues emerging is speculation about how much Trump might try to delay his actual trial versus how much the Justice Department might try to move to trial more quickly. Elie, do you think it's in Trump's interest to delay and in the Justice Department's interest to move forward more quickly in terms of the ultimate outcome of the case?

Elie Honig: Yes, and yes. If I'm Trump's lawyers, my absolute best defense, maybe my only defense, is to just push this thing off. If I'm the prosecutor, I'm desperately trying to get this thing tried. Let me say why that is. First of all, from Donald Trump's point of view, if he wins the election, which could very well happen, this case will go away. It'll either be, he'll try to pardon himself, which we don't know whether that's constitutional, or he'll just order his DOJ to drop the case. Even short of that, there is just no possible way the federal courts will hold a trial of a sitting president. It won't happen. That's number one.

DOJ, the timing is so important here, Brian, because even if they do get to try this case before the election, first of all, I'm not sure where on earth it goes on the calendar. Because keep in mind, the Manhattan case, the hush-money case, has already been scheduled for trial for March 25th of 2024. Now, meaning it's going to take you through-- It's not going to be a super long trial, but you have to allow a defendant time to prepare, and you have to allow several weeks for the trial, so March and April are off the board.

My question would be, when on earth does DOJ think they're going to try this thing? If you could say, well, before Manhattan, you'd have to start in January. I don't think it's at all reasonable or feasible that this case will be ready for trial within six months from now. That leaves us with after Manhattan, but you can't chain-smoke trials, you can't just go one right into the next. The defendant has a constitutional right to prepare his defense to bring motions. Let's say Manhattan goes March through April, you can't just start up a federal trial in June. Let's say even if you're going to put it as quickly as possible. July? We're going to have a federal trial of a guy who could be the nominee, one of two nominees out there for president in July and August of an election year with primaries and conventions? I don't know that any judge is going to countenance that. I don't know if I, frankly, want that as prosecutors and here's why.

I could very well see-- Keep in mind, all you need is one juror to hang a case. Keep in mind, DOJ made the decision, I think the legally correct decision, to charge this case in Florida, but there are going to be, mathematically, 4, 5, 6, 7 jurors out of 12 who voted for Trump. Even in those southern counties of Florida, Trump won Florida in 2020, but even in Miami-Dade or Palm Beach County, he got 40%, 45% of the vote. Now you're going to have to not only convince 4, 5, 6, 7 Trump voters to convict him, but put aside political preference. I can see a rational juror just say, let's say, hypothetically, "I don't like the guy. I think he committed a crime, but I also feel uneasy with convicting and potentially imprisoning a guy who has a 50/50 chance of becoming president." If I'm a prosecutor, that timing would worry me, but I think the risk of it- if you get it pushed off outside the election, the risk of it going away altogether is just too much to take.

I do want to say something else about this. Jack Smith, when he made his very brief remarks last week, said, we're going to push for a speedy trial here, which is great because that's all prosecutors ever can or do say. We were trained, when I was at DOJ, anytime a judge says to you, we're looking at trial in such-and-such date-- A judge could say to me right now, "Mr. Honig, we're looking at trial tomorrow morning at 9:00 AM." I would say exactly what Jack Smith said, "We're ready. The government is ready." That is a mantra.

The problem is the government is really a side participant at best in setting a trial date. It's up to the judge, and the party who the judge is concerned with is really the defendant. The defendant is the one who has to bring pretrial motions, and we can talk about what those will be here. The defendant is the one with the constitutional right to counsel, a constitutional right to aid in his own preparation of his defense. Judges are going to-- Different judges have different patience levels, and they don't have to give a defendant whatever he wants but generally, as the prosecutor, when it comes to scheduling a trial, you're more of a bystander. You can cheer on and you can urge the judge, "Let's do this quickly." Ultimately, I would say it's 70%- well, it's 100% up to the judge, but the judge is going to care, 70%, about what the defendant wants, 80% about what the defendant wants and maybe 10%, 20% what the prosecutor wants.

Brian Lehrer: I have one follow-up question on the chain of events, which trial goes first, that you were raising, and one follow-up question on the nature of the jury. On the jury, can the jury selection process effectively screen out political predispositions to decide one way or another, as you were suggesting people might have, in a criminal case, generally?

Elie Honig: The jury selection process is an imperfect filter. It's like you'd rather have some filtration than none. Here's what it will do. You will have a pretty good sense, if you're picking this jury, of where people stand on Trump. They will be asked that 500 different ways. "Do you have strong views about any of the parties involved in this case?" They may ask, you probably can ask, I'm not sure if they will choose to, "Who did you vote for in 2020?" I don't know if I would want that or not, on either side, want to be asked that.

The goal here is not to find 12 jurors who've never heard of Donald Trump. That's impossible. The goal is not even necessarily to find 12 jurors who just say, "I have no opinion. I'm 50/50 on him." You're going to be looking for what the person's political leanings are, or Trump leanings are. Then the question that they'll be asked explicitly will be, "Are you capable of putting aside your personal beliefs, your political beliefs, and judging this case based solely on the facts as they're introduced in this courtroom?" A lot of people will say yes to that, but then your challenge as a lawyer, having picked many juries, is, well, do I buy it? Do I believe this person?

Because there are definitely times when I've had, not in a situation exactly like this, but a person has gone up and said, for example, "I really hate the cops. I'll never believe what the cops have to say," and a judge will say, "Well, can you put that aside and judge fairly in this case?" They'll say, yes. Now as a prosecutor, I'm thinking, I don't believe it and I don't want this person, and it can go both ways on that. A lot of it just comes down to your gut instinct. Do I believe this person?

Is there a perfect way to filter out and make sure we only have Trump agnostics on the jury? No, there's not, but there will be a substantial vetting process that should help weed out the most extreme jurors. I will say, there will probably be people who will honestly say, "I could never vote to convict Donald Trump. I think he's great." That person will be out. You may have people who say, "I desperately want this guy to go to jail, and I can't wait to convict him." That person will be out too.

Brian Lehrer: On the chain of events, what you called chain-smoking trials, when there are so many backed up against the same defendant. We already saw the New York State Attorney General, Letitia James, say, and that's a civil case against Trump, it's not a criminal case, but say that she's going to put her case on the back burner while these criminal trials play out. You raise the Manhattan DA's criminal case in the Stormy Daniels hush-money falsifying records charge and that that's already been scheduled. Maybe that should take a backseat to these federal cases.

Then we have the further possible complications that an indictment of Trump might come from a grand jury in Georgia on that election interference case that's expected, one way or another, to be decided in the next couple of months whether to indict. Then there's also the other Jack Smith special counsel case, January 6th itself, and whether to indict Trump. It could get- talk about chain smoking, it could be a pack a day.

Elie Honig: [chuckles] It could be. There's an interesting possibility that has been floated, and I think you may be referring to this. Let's say, could the Feds, could DOJ call up Alvin Bragg, the DA, and say, listen, you have the one available trial spot here. He has the Goldilocks zone. That March/April is about the only time that's far enough away that it would give probably enough time for the motions to happen and for prep to happen, but still maybe not quite close enough to the election that it would cause a problem.

DOJ could theoretically call up Alvin Bragg and say, there's only really room for one trial here. You're in it. Ours is sort of more important, no offense, Mr. DA. Would you mind giving up that spot? Now the judge would have to agree, the state judge here, Judge Merchan, but that's possible. I'll just say, people have asked, could that happen? Yes, but you would need a couple other parties on board there.

Brian Lehrer: One other Trump-related question in this case. The judge on Tuesday ordered Trump not to discuss the case with any witnesses or with his co-defendant, Walt Nauta, who I believe is working as an aide to Trump right now, which means they're together a lot and yet they're prevented from discussing the case. Is that standard, or why would a judge impose that specific limit in this specific case?

Elie Honig: Well, that's a common limit, actually, where judges will say no contact with victims or witnesses. A, because you don't want any victim or witness being influenced or intimidated. B, it's really a protective measure for the defendant. Because people don't realize how easy it is to, maybe inadvertently, maybe not, tamper with [sound cut] [inaudible 00:39:07] -the witnesses are his staff. I mean, take Walt Nauta. Walt Nauta is his body man. Walt Nauta walked out of court with Donald Trump and went to that restaurant and had dinner with him, I think, that night. It's really not feasible, unless you have some sort of real danger situation, to tell someone like Donald Trump, you can't have any interaction whatsoever.

The line that gets drawn is, well, you can't talk to him about the case. Now the natural follow-up there is, how can that be enforced? The answer is it can't. The only way it could go bad for Trump, if he were to cross that line, would be, for example, if Walt Nauta were to flip and say, "Oh, yes, a couple weeks after the judge gave that warning, he started talking to me about what to do with the case." It's not really policeable, that line, but it's put in place as a just in case and as an effort to keep the witnesses separate from a defendant.

Brian Lehrer: Of course, in Trump's case, I think most people believe he has a propensity to try to tamper in that particular way. One of the charges in the case, and he's innocent until proven guilty, but part of the narrative from the special counsel is that Trump was telling people in his orbit at Mar-a-Lago, can't we make some of these documents disappear, and things like that.

Elie Honig: Right.

Brian Lehrer: Before you go, I want to touch on this Philadelphia lawsuit decision in a case of racial bias brought by a white former Starbucks manager after an incident that made the news, some of the listeners might remember this, in which some Black people in the store were apparently singled out on the basis of race and kicked out of the Starbucks. They later fired this particular manager who was not involved in the incident. She says she was fired because she was white. The jury agreed to the tune of a $25 million damage award, most of it for what they call punitive damages. Her allegation is that they fired her basically as part of trying to make amends to the Black community.

What did the plaintiff have to prove to show that Starbucks fired her because she was white?

Elie Honig: This is such an interesting case. She was sort of a regional manager in charge of several states' worth of stores. She claimed that she was discriminated against, that the reason she was fired was because of her race. Her claim here was that she was essentially a sacrificial lamb who was dispatched in order to appease the masses, and they singled her out because of her race, while they chose not to fire-- For example, the person who managed the actual store where this incident happened in Philly, I believe, was African American and he was not fired, was part of her argument. Yet, the person several levels up the corporate ladder was fired.

Starbucks tried to defend itself in vague terms. They said something like, she didn't show an appropriate awareness of the situation in the response, and the jury rejected that. The jury ruled in favor of this woman. They awarded her $600,000 in compensatory damages, meaning for lost financial opportunities or lost dollar amounts, and then $25 million punitive on top of that. Now that number could and quite likely will get reduced on appeal. To have a punitive damages award that's 40-ish times the amount of the compensatory damages award is going to be tough to uphold, but the jury was convinced here.

Looking at Starbucks' answer for why they fired her, it's kind of mush-mouth. It's kind of wishy-washy. It's not specific. It's not as if they said, we fired her because she was harassing her employees. We fired her because she was habitually late. They just said she didn't reflect the sufficient awareness of the blah, blah, blah. I'm not convinced, as you can hear in my voice, and the jury was not convinced.

Brian Lehrer: Yes. $600,000 for lost wages. How much does a Starbucks manager-- Well, never mind. Let's assume that's okay. Who gets the $25 million if that stands?

Elie Honig: She does. The plaintiff does.

Brian Lehrer: Oh, she does?

Elie Honig: Yes, that's how it works.

Brian Lehrer: And there we leave it with Elie Honig, Senior Legal Analyst at CNN, former prosecutor for the state of New Jersey and the federal government, and author of the book that came out this year called Untouchable: How Powerful People Get Away with It. Elie, thank you so much for all this time and analysis. We always appreciate when you come on.

Elie Honig: Thanks for having me, Brian. Appreciate it.

 

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